Com. v. Bethea, R. ( 2016 )

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NON-PRECEDENTIAL DECISION – SEE SUPERIOR COURT I.O.P. 65.37
COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
v. :
:
RONALD BETHEA, : No. 2099 EDA 2014
:
Appellant :
Appeal from the PCRA Order, June 12, 2014,
in the Court of Common Pleas of Philadelphia County
Criminal Division at No. CP-51-CR-0305131-2005
BEFORE: FORD ELLIOTT, P.J.E., STABILE AND MUSMANNO, JJ.
MEMORANDUM BY FORD ELLIOTT, P.J.E.: FILED JULY 11, 2016
Ronald Bethea appeals from the order of June 12, 2014, dismissing his
first petition for post-conviction collateral relief filed pursuant to the Post
Conviction Relief Act, 42 Pa.C.S.A. §§ 9541-9546. Appointed counsel,
Craig Mitchell Cooley, Esq., has filed a petition to withdraw. We grant
Attorney Cooley permission to withdraw and affirm the order dismissing
appellant’s PCRA petition.
On September 19, 2007, following a jury trial, appellant was found
guilty of conspiracy to commit third-degree murder in connection with the
shooting death of Stephen Brown. The underlying facts, which are not
germane to the instant appeal, are set forth in this court’s memorandum
affirming the judgment of sentence on direct appeal at pages two through
five. Commonwealth v. Bethea, No. 234 EDA 2008, unpublished
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memorandum at 2-5 (Pa.Super. filed January 20, 2010). On November 26,
2007, appellant was sentenced to 20 to 40 years’ imprisonment. This court
affirmed the judgment of sentence on January 20, 2010. Id. On
September 7, 2010, our supreme court denied appellant’s petition for
allowance of appeal. Commonwealth v. Bethea, 71 EAL 2010
(per curiam).
On July 15, 2011, appellant filed a timely counseled PCRA petition,
alleging that conspiracy to commit third-degree murder is not a cognizable
crime in Pennsylvania, and that trial counsel was ineffective for failing to
raise this issue in the trial court. (Docket #12.) The Commonwealth filed a
motion to dismiss, and appellant filed a response. On January 16, 2014, the
PCRA court issued a Rule 9071 notice of intent to dismiss the petition without
a hearing. On June 10, 2014, PCRA counsel, Norris E. Gelman, Esq., filed a
motion to withdraw. (Docket #16.) Two days later, on June 12, 2014,
appellant’s PCRA petition was dismissed. (Docket #17.) A timely pro se
notice of appeal was filed on July 11, 2014. (Docket #18.) On July 31,
2014, appellant was directed to file a concise statement of errors complained
of on appeal pursuant to Pa.R.A.P. 1925(b) within 21 days (August 21,
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Pa.R.Crim.P. 907.
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2014). (Docket #19.)2 Appellant complied on August 20, 2014, by filing a
pro se Rule 1925(b) statement, raising the same issues raised in his PCRA
petition. (Docket #20.) Subsequently, on September 16, 2014,
Attorney Gelman filed an application to withdraw in this court, which was
granted on October 3, 2014. This court remanded the case to the PCRA
court to determine whether appellant was eligible for court-appointed
counsel and, if so, to appoint counsel for appellant in connection with this
appeal. On November 24, 2014, the PCRA court issued a Rule 1925(a)
opinion. Current counsel, Attorney Cooley, was appointed to represent
appellant for appeal purposes on March 19, 2015.
Initially, we note that Attorney Cooley has filed an Anders brief rather
than a Turner/Finley no-merit letter. Anders v. California, 386 U.S. 738
(1967); Commonwealth v. Turner, 544 A.2d 927 (Pa. 1988);
Commonwealth v. Finley, 550 A.2d 213 (Pa.Super. 1988) (en banc). On
an appeal from the denial of a PCRA petition, a Turner/Finley letter is the
appropriate filing. However, we may accept an Anders brief instead. See
Commonwealth v. Fusselman, 866 A.2d 1109, 1111 n.3 (Pa.Super.
2004), appeal denied, 882 A.2d 477 (Pa. 2005) (“[B]ecause an Anders
2
We note that Attorney Gelman was still counsel of record and had not been
given permission to withdraw. See Commonwealth v. White, 871 A.2d
1291, 1294 (Pa.Super. 2005) (“once counsel has entered an appearance on
a defendant’s behalf he is obligated to continue representation until the case
is concluded or he is granted leave by the court to withdraw his
appearance”), quoting Commonwealth v. Quail, 729 A.2d 571, 573
(Pa.Super. 1999).
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brief provides greater protection to the defendant, we may accept an
Anders brief in lieu of a Turner/Finley letter.”). See also
Commonwealth v. Santiago, 978 A.2d 349 (Pa. 2009) (guiding
Pennsylvania courts’ application of Anders). Despite counsel’s error, we
find that he has complied substantially with the Turner/Finley
requirements. Hence, we overlook his procedural misstep. In addition,
Attorney Cooley has attached a copy of the letter to appellant advising him
of counsel’s intention to withdraw and of his rights going forward.
(“Anders/No-Merits Brief,” Exhibit 12.) See Commonwealth v. Friend,
896 A.2d 607, 615 (Pa.Super. 2006) (“PCRA counsel must
contemporaneously forward to the petitioner a copy of the application to
withdraw, which must include (i) a copy of both the ‘no-merit’ letter, and
(ii) a statement advising the PCRA petitioner that, in the event the [] court
grants the application of counsel to withdraw, the petitioner has the right to
proceed pro se, or with the assistance of privately retained counsel”)
(footnote omitted). Appellant has not responded to Attorney Cooley’s
petition to withdraw.
This Court’s standard of review regarding an order
denying a petition under the PCRA is whether the
determination of the PCRA court is supported by the
evidence of record and is free of legal error.
Commonwealth v. Halley, 582 Pa. 164, 870 A.2d
795, 799 n. 2 (2005). The PCRA court’s findings will
not be disturbed unless there is no support for the
findings in the certified record. Commonwealth v.
Carr, 768 A.2d 1164, 1166 (Pa.Super.2001).
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Commonwealth v. Turetsky, 925 A.2d 876, 879 (Pa.Super. 2007),
appeal denied, 940 A.2d 365 (Pa. 2007).
[T]he right to an evidentiary hearing on a
post-conviction petition is not absolute.
Commonwealth v. Jordan, 772 A.2d 1011, 1014
(Pa.Super.2001). It is within the PCRA court’s
discretion to decline to hold a hearing if the
petitioner’s claim is patently frivolous and has no
support either in the record or other evidence. Id.
It is the responsibility of the reviewing court on
appeal to examine each issue raised in the PCRA
petition in light of the record certified before it in
order to determine if the PCRA court erred in its
determination that there were no genuine issues of
material fact in controversy and in denying relief
without conducting an evidentiary hearing.
Commonwealth v. Hardcastle, 549 Pa. 450, 454,
701 A.2d 541, 542-543 (1997).
Id. at 882, quoting Commonwealth v. Khalifah, 852 A.2d 1238,
1239-1240 (Pa.Super. 2004).
[W]e begin with the presumption that counsel was
effective. A claimant establishes ineffective
assistance of counsel when he demonstrates that
[1] the underlying claim is of arguable merit;
[2] that counsel’s action or inaction was not
grounded on any reasonable basis designed to
effectuate the appellant’s interest; and finally,
[3] that counsel’s action or inaction was prejudicial
to the client. For an action (or inaction) by counsel
to be considered prejudicial to the client, there must
be a reasonable probability that the outcome of the
proceedings would have been different. All three
prongs of this test must be satisfied. If an appellant
fails to meet even one prong of the test, his
conviction will not be reversed on the basis of
ineffective assistance of counsel.
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Commonwealth v. O’Bidos, 849 A.2d 243, 249 (Pa.Super. 2004), appeal
denied, 860 A.2d 123 (Pa. 2004) (citations and internal quotation marks
omitted).
Relying on Commonwealth v. Clinger, 833 A.2d 792 (Pa.Super.
2003), appellant contends that criminal conspiracy to commit third-degree
murder is not a cognizable offense in Pennsylvania. In Clinger, the
defendant and his brother severely beat the victim, who was rendered
unconscious and was lucky to have survived. Id. at 793. The defendant
pled guilty to criminal conspiracy to commit third-degree murder. A
pre-sentence motion to withdraw the plea was denied, and the defendant
was sentenced to 20 to 40 years’ imprisonment. On appeal, this court held
that there was no factual basis for the plea where it was impossible under
the law to commit the crime of conspiracy to commit murder in the third
degree:
In the present case, since the crime of third degree
murder was not accomplished, appellant could only
be guilty of conspiracy to commit a crime if he
intended that crime to be accomplished. Logic
dictates, however, and this Court has recognized,
that it is impossible for one to intend to commit an
unintentional act.
Id. at 796 (citation omitted). Therefore, this court in Clinger held that the
defendant’s motion to withdraw his guilty plea should have been granted.
Id. at 796-797.
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As the PCRA court recognized, however, Clinger was abrogated by our
supreme court in Commonwealth v. Fisher, 80 A.3d 1186 (Pa. 2013),
which held that the absence of intent to kill does not preclude a defendant
from being convicted of conspiracy to commit third-degree murder: “The act
sufficient for third degree is still a purposeful one, committed with malice,
which results in death--clearly, one can conspire to such an intentional act.”
Id. at 1191. Therefore, it appears that Clinger is no longer good law. In
addition, Clinger is factually distinguishable from the instant case, where in
Clinger, the victim survived the incident. In the case sub judice, the
victim died as the result of multiple gunshot wounds. As such, the
underlying issue, that appellant could not be convicted of conspiracy to
commit third-degree murder, lacks arguable merit, and trial counsel cannot
be held ineffective for failing to have raised it.
Furthermore, even though Clinger was still good law at the time of
appellant’s trial in 2007, Clinger was essentially an outlier, and there was a
substantial body of case law holding that a defendant can be convicted of
conspiracy to commit murder in the third degree. See Fisher, 80 A.3d at
1191-1193 (“Our review of Pennsylvania case law regarding conspiracy to
commit third degree murder reveals convictions for this crime have long
been recognized as valid.”), citing, e.g., Commonwealth v. Mobley, 359
A.2d 367 (Pa. 1976); Commonwealth v. Wanamaker, 444 A.2d 1176,
1178 (Pa.Super. 1982); Commonwealth v. La, 640 A.2d 1336, 1345-1346
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(Pa.Super. 1994). Indeed, the Fisher court characterized Clinger’s holding
that conspiracy to commit third-degree murder is a legal impossibility as an
abrupt change in course. Fisher, 80 A.3d at 1193. As the PCRA court
observes, Clinger departed from established precedent, and even if trial
counsel had raised the issue, it most likely would have failed. (PCRA court
opinion, 11/24/14 at 4.) Therefore, appellant cannot establish that he was
prejudiced by trial counsel’s alleged omission in this regard.
Having conducted an independent review of the entire record, this
court is satisfied that the issues raised in appellant’s petition are meritless
and that the PCRA court did not err in denying appellant’s petition.
Accordingly, we will grant Attorney Cooley’s petition to withdraw and affirm
the order denying appellant’s PCRA petition.
Petition to withdraw granted. Order affirmed.
Judgment Entered.
Joseph D. Seletyn, Esq.
Prothonotary
Date: 7/11/2016
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